Families First Coronavirus Response Act Expands Provisions of FMLA

On March 18, 2020, the Families First Coronavirus Response Act (H.R. 6201) was signed into law. The act requires emergency paid sick leave and expanded family and medical leave to be available to workers who are dealing with coronavirus illness and shutdowns. The law applies to all public employers and takes effect on April 1st. The law is set to expire on Dec. 31, 2020.

Emergency Paid Sick Leave

Under this provision, full-time employees are eligible to take up to 80 hours of paid leave for one of the following reasons:

  • The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID–19.
  • The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID– 19.
  • The employee is experiencing symptoms of COVID– 19 and seeking a medical diagnosis.
  • The employee is caring for an individual who has been advised to self-quarantine or is experiencing symptoms of COVID-19.
  • The employee is caring for a son or daughter of such employee if the school or place of care of the son or daughter has been closed, or the child-care provider of such son or daughter is unavailable, due to COVID–19 precautions.
  • The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

The paid sick leave is to be available immediately no matter how long the employee has worked for their employer. Part-time employees will be eligible to take emergency paid sick leave on a prorated basis.

An employee’s pay while taking sick leave due to illness will be calculated on the employee’s regular rate and limited to $511/day and $5,110 in total. Leave taken to care for a child whose school or day care has closed will be 2/3 of the employee’s regular rate and limited to $200/day and $2,000 in total.

The law does not require the sick leave to be in addition to existing paid sick leave, but provides that “[a]n employer may not require an employee to use other paid leave provided by the employer to the employee before the employee uses the paid sick time under [the Act].”

Also, employers cannot require employees to find someone to cover their hours as a condition for taking paid sick time.

Emergency Family and Medical Leave Expansion

Eligibility to request and use family and medical leave now extends to any employee who has worked for their current employer for at least 30 consecutive calendar days. To qualify, the employee must

  • Need to care for a child who is younger than 18 whose school or place of care is closed or for a child whose childcare provider is unavailable due to a public health emergency, and
  • Be unable to work or telework because of their need to care for their child.

Employees can take the first 10 days of emergency family and medical leave as unpaid leave or substitute accrued leave for the unpaid portion. Employers cannot require an employee to use accrued leave before taking emergency family and medical leave.

Employers need to provide paid leave for the subsequent 10 weeks of leave that is capped at $200/day and $10,000 total. Further, employers need to make reasonable efforts to restore employees who return from leave to their same or equivalent positions. If those efforts fail, employers need to make reasonable efforts to contact employees if equivalent positions become available over the next year.

The Secretary of Labor has authority to exclude certain health care providers and emergency responders from coverage. Also, employers with fewer than 50 employees can request exemptions if complying would jeopardize the viability of their businesses.

Other Employment Provisions of the Law

Private employers will receive payroll tax credits to cover the wages paid to employees who take emergency sick leave and family and medical leave however, public employers will not receive tax credits. Advocacy groups are writing to the majority and minority leaders of the House and Senate highlighting the hardships that could result from this discrepancy.

The law also directs the Secretary of Labor to promulgate emergency temporary standards to protect health care workers under OSHA and to expand which hospitals and other medical facilities are subject to such standards.

Posting Requirements

Each covered employer must post an FFCRA notice in a conspicuous place on its premises. Since many employees are now working remotely, employers should consider using other means that may be visible to remote workers. The DOL suggests options such as e-mailing or direct mailing the notice to employees who are working remotely or posting the notice on an employee information internal or external website.

Covered employers must post this notice regardless of whether their state requires greater protections, as employers must comply with both federal and state law.

Further, employers must share these notices with current employees, including new hires, but need not do so with those who have been recently laid off. Employers also have no obligation to provide the notice to prospective employees.

The U.S. Department of Labor’s (DOL’s) Wage and Hour Division has published workplace posters that small and midsize employers can use to fulfill their obligations to notify employees of their rights to expanded paid sick leave and expanded paid Family and Medical Leave Act leave under the Families First Coronavirus Response Act (FFCRA).

The poster may be found here: https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

Staying Up to Date on Requirements

Employers can stay up to date on news related to the FFCRA by checking the Wage and Hour Division’s website or sign up for Key News Alerts email  https://www.dol.gov/general/ to ensure that they remain current with all notice requirements, including updated versions of the FFCRA posters.